Prashant Kumar Agarwal, J. - (1.) FEELING aggrieved by the judgment and order dated 30.10.1999 passed by the Judge, Motor Accident Claims Tribunal, Tonk in M.A.C. Case No. 31/1998 whereby the learned Tribunal has dismissed the claim petition filed by the appellants, the appellants have filed this Civil Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter to be referred as "the Act").
(2.) BRIEF relevant facts for the disposal of this appeal are that the appellants filed the aforesaid claim petition under Section 166 of the Act claiming a sum of Rs. 31,59,000/ - as compensation on account of death of Shri Tarachand with the averments that on 4.5.1998 in the evening at about 4.00 p.m. when the deceased -Shri Tarachand was coming towards his village on his scooter, in the way near Janmangal Public Chareatable Trust, a Motorcycle bearing registration No. RJ -26 -M1 -3213, which was being driven by respondent -Shri Mohd. Ali rashly and negligently, hit the scooter of the deceased as a result of which deceased sustained several injuries and he was taken to SMS Hospital, Jaipur for treatment, but on the same day he died as a result of the injuries sustained by him. Claiming that the age of the deceased was 30 years at the time of the accident and he was earning Rs. 5,000/ - per month as a mechanic and by agriculture, an amount of Rs. 31,59,000/ - was claimed as compensation under various heads. Respondent -Shri Mohd. Ali filed written reply with the averment that no accident was occurred on 4.5.1998 by his aforesaid vehicle and the allegation made in the petition are totally false. The correctness of the income earned by the deceased was also disputed and it was further stated that the appellant -claimants are not entitled to get any compensation. The respondent -Insurance Company also filed written statement denying the facts stated in the claim petition and it was further stated that as per medical report the deceased sustained injuries due to fall from the roof. It was also stated that a false story of motor accident has been put -forward by the claimants merely for the purpose of claiming compensation. On the basis of pleadings of the parties, necessary issues were framed by the learned Tribunal and the question of accident due to involvement of the aforesaid motorcycle allegedly driven by the respondent -Shri Mohd. Ali rashly and negligently was dealt with by the learned Tribunal under Issue No. 1 and on the basis of the pleadings and evidence available on record, it came to a definite conclusion that the death of Shri Tarachand was not as a result of a motor accident, but he sustained injuries by falling from the roof of his house. With this finding, the claim petition filed by the claimant -appellants was dismissed. In support of the appeal, learned counsel for the appellants raised the following grounds: - - "(i) Date of alleged incident is 4.5.1998 and immediately after the accident the deceased -Shri Tarachand was taken to SMS Hospital, Jaipur for treatment and he died on 4.5.1998 at 3.00 p.m. while undergoing treatment and thereafter the appellants and other relatives of the deceased were busy in performing the last rites of the deceased and, therefore, FIR could be lodged only on 7.5.1998 i.e. with a delay of three days only, but only on that ground it cannot be said that the deceased did not sustain injuries in the manner as claimed by the appellants. It is well settled legal position that a claim petition cannot be dismissed only on the ground that the FIR was lodged with some delay. (ii) To prove the fact of accident and involvement of the aforesaid motorcycle therein, independent eye witnesses were produced on behalf of the appellants, but the learned Tribunal without assigning any sufficient reasons discarded their version of the case by relying on a statement mentioned in postmortem report prepared in the hospital to the effect that according to the legal representatives of the deceased, the deceased sustained injuries by falling from roof. It has not been made clear on whose information the aforesaid fact was mentioned in the postmortem report and in absence thereof the statement of the eyewitnesses could not have been disbelieved. As per postmortem report one Shri Sushil Kumar was present when this report was prepared meaning thereby the aforesaid fact of falling from roof was recorded by the doctor in the postmortem report on the basis of information given by Shri Sushil Kumar, but it has not been explained who this person Shri Sushil Kumar is and in what capacity he was present in the hospital and from what source he gave information to the doctor that the deceased sustained injuries by falling from the roof. In absence of such explanation the learned Tribunal went wrong to dismiss the claim petition on the basis of aforesaid fact more particularly in view of the fact that in such cases a fact is required to be proved only to the extent of probability and not beyond reasonable doubt. (iii) It is pertinent to mention that after lodging of FIR investigation was conducted and on the basis of evidence collected it was found that respondent -Shri Mohd. Ali was involved in the incident and charge -sheet was filed against him for the offences under Sections 279 and 304 -A IPC. The fact of filing of charge -sheet further corroborates the oral evidence produced on behalf of the appellants."
(3.) IT was prayed on behalf of the appellants that the finding of the Tribunal may be set aside and reversed and the matter be remanded back to the Tribunal to consider and decide the remaining issues.;